Abstract

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This paper was written for a feschrift in tribute to Professor Margaret Berger. It uses the 4th Circuit’s final direct appeal opinion in United States v. Moussaoui as a springboard for an examination of how certain types of confrontation and hearsay issues might be argued and decided in future terrorism prosecutions in the federal courts.

In addressing a compulsory process issue, the Moussaoui court developed arguments about the reliability of intelligence reports prepared by the government derived from the interrogation of three detainees. Moussaoui was seeking the testimony of these detainees: The Moussaoui court concluded that the statements recorded in the reports were obtained for terrorism intelligence purposes and that, in the circumstances, the statements included therein had sufficient reliability to permit their use as a substitute for in-person or deposition testimony, which the government on national security grounds had declined to make available.

The nature of the characterization of these reports by the Moussaoui court, albeit in a compulsory process context, lends itself to thinking about what would happen if similar intelligence reports are offered into evidence in future federal court terrorism prosecutions, but in a confrontation/hearsay context. This paper analyzes the issues that would be raised under the doctrines of Crawford v. Washington and Davis v. Washington as well as the Federal Rules of Evidence and assesses the likely success of such a use of the Moussaoui approach.